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Passavant Reviews Freeing Speech

Posted on Tuesday, December 10, 2013

A book review written by Associate Professor of Political Science Paul Passavant recently appeared in Law and Politics Book Review, sponsored by the Law and Courts Section of the American Political Science Association. Passavant reviewed "Freeing Speech: The Constitutional War over National Security," by John Denvir (New York University Press, 2010).

Passavant writes, "The thesis is defended with clear writing, allowing the book to be assigned in undergraduate civil liberties courses. The overall project, however, leaves experts, politicians, and citizens with disturbing problems demanding attention to keep the United States constitutional system from slipping further into the depths of a post-democratic order. In this regard, the book may be poorly titled because its substance goes well beyond the First Amendment to the well-being of the polity itself."

A member of the HWS faculty since 1997, Passavant is the author of "No Escape: Freedom of Speech and the Paradox of Rights" (New York University Press, 2002), and the editor (with Jodi Dean) of "Empire's New Clothes: Reading Hardt and Negri" (Routledge, 2004), and numerous articles in law and political theory, such as "Policing Protest in the Post-Fordist City," Amsterdam Law Forum (2009). His current work addresses neoliberalism, the policing of protest, and urban transformation.

His full review of Freeing Speech follows.

The Law and Politics Book ReviewVol. 23 No. 12

Editor's note: The Law and Politics Book Review generally reviews first edition and first publications of books. FREEING SPEECH was reviewed in 2010 when it first was published in hardback. An editorial oversight led to the commissioning of a second review when the book was published in paper.

FREEING SPEECH by John Denvir powerfully argues that the broad vision of presidential power recent presidents have aggressively pursued, to which Congress, and in significant measure, Denvir claims, the Supreme Court has acquiesced, coupled with "a weak official interpretation of the First Amendment," has "transformed American democracy for the worse" (p.7). The thesis is defended with clear writing, allowing the book to be assigned in undergraduate civil liberties courses. The overall project, however, leaves experts, politicians, and citizens with disturbing problems demanding attention to keep the United States constitutional system from slipping further into the depths of a post-democratic order. In this regard, the book may be poorly titled because its substance goes well beyond the First Amendment to the well-being of the polity itself.

FREEING SPEECH's Introduction outlines a framework for the book's subsequent analysis of "four Constitutions." The first meaning of "constitution" is the actual text. The second is the official meaning given to the text by the Supreme Court. The third is the primary "challenger" to the official constitution, and the fourth is the "de facto Constitution," which is the operative "constitution" during the Supreme Court's silence.

Chapter One addresses the "National Security Presidency." It begins with the text of the Constitution, observing that the framers not only made Congress the dominant policy making branch domestically, but also on foreign policy and national security matters. The official constitution is represented by the key precedent on presidential power, YOUNGSTOWN SHEET & TUBE V. SAWYER (1952). In YOUNGSTOWN, the Court ruled against President Truman's seizure of steel mills during the Korean war to prevent a labor dispute from stopping work. Justice Black's majority opinion finds the seizure unsupported by either statute or by Truman's claims for an independent source of constitutional power. The president's responsibility is to execute faithfully laws passed by Congress, but here Congress had refused to provide the president with the power he now wished to exercise, leaving the president without legal authority for his actions. Today, many focus on Justice Jackson's concurring opinion and its more "fluid" approach to presidential power, which Denvir rejects. Denvir's brief constitutional history of the presidency finds that prior to the attacks of September 11, 2001, presidents, at least formally, have operated within the fluid conception of Jackson's scheme of presidential power.

After 9/11, the Bush administration [*618] promoted a "challenger" conception of presidential power, asserting presidential power to act independently of Congress, if not contrary to its laws in some instances such as surveillance or interrogation. Denvir argues that this "challenger" conception of presidential power, which he calls the "National Security Presidency," bases its authority upon a quadrennial national plebiscite that is "too thin" for real democratic legitimacy. Moreover, it fails to provide an effective decision-making structure. Decisions made unilaterally by presidents cannot benefit from input by Congress or society, regarding either empirical claims or normative considerations.

Chapter Two argues presidential speech "corrupts our national security debates" (p.33). Denvir acknowledges it is impossible to limit the number of times a president speaks or the messages delivered. Nevertheless, Congress could subject presidents to critical questioning the way that the British prime minister is questioned by Parliament, or call the president before relevant congressional committees (p.51). More controversially, Denvir proposes a "disinformation felony" in response to the deceptive campaign the Bush administration used to win congressional support for invading Iraq.

To be sure, using "knowing or reckless falsehoods" to lead the country to war is a wrong of the deepest nature. But why not impeachment? If a president or his agents have made false statements knowingly, or with reckless disregard for their veracity, to lead the country to war, then this president has betrayed the public trust and ought to be impeached. Also unconsidered is the careful wording of Bush's most false statement. In his 2003 State of the Union address, Bush said Iraq must have been engaged in a nuclear weapons program, because it had sought to procure uranium from Africa. Although the CIA investigated the claim and concluded that the "documents" supporting the claim were forgeries, the Bush administration went ahead with the claim with disregard for the CIA's finding. Yet, the wording of Bush's statement, quoted by Denvir, is "The British Government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa" (p.52). The sentence may be technically true in terms of the claim about the British government, even as it is substantively false and used to deceive. Impeachment leaves the terrain of linguistic technicalities to reach the more fundamental wrong. Also unconsidered in the proposal of the disinformation felony is the possible misuse of criminal prosecution by political enemies of the president. An endless barrage of such accusations can hamstring a presidency or be used strategically to mislead public opinion.

Chapter three provides a short history of the Supreme Court's First Amendment rulings. During the Warren Court era, the Court's broad protection of First Amendment rights of speech and assembly in a "public forum" played an important role sustaining the mobilization of the Civil Rights movement. Between 1968 and 1992, however, Republican presidents made all Supreme Court appointments, resulting in a new official legal doctrine for the First Amendment. The increased frequency of "executive privilege" claims, assertions of "state secrets," and the exclusion of the press from war [*619] zones has led to the citizenry being kept "in the dark" regarding governmental practices, as described in chapter four.

Chapter five argues the right to protest has become circumscribed since 9/11. Since the 1980s, the Court has allowed municipalities a freer hand to interfere with the public exercise of speech rights as long as their ostensible purpose was to regulate the place of the protest or its manner of expression. The Court became much less strict about governments burdening more speech than was necessary to achieve their ends, and less concerned with whether alternative channels of communication were truly as effective as where the group originally sought to exercise their rights of political expression. In February 2003, peace activists sought to march to the United Nations as the relevant seat of government to make known their opposition to the looming war in Iraq. New York City refused to allow this seemingly valid exercise of First Amendment rights in a public forum. Federal courts deferred to these security concerns without asking the City to achieve its goal of protecting the United Nations in a manner that burdened the protests less (Denvir describes how this might have been done).

In addition to a narrow view of the First Amendment, the Supreme Court has imposed unreasonably strict "standing" requirements, and has excessively deferred to executive branch claims of "state secrets," when activists seek to challenge unconstitutional surveillance practices. Denvir finds in chapter six that courts are inconsistent in their application of standing requirements to the benefit of the National Security Presidency and to the detriment of democracy. On the one hand, courts tend to permit a fairly speculative threshold for injury on the part of a white plaintiff who challenges a government affirmative action program. On the other hand, they have even refused to reach the merits of a case on the misuse of National Security Agency (NSA) spying when the plaintiffs knew they had been targeted by the NSA because the government inadvertently made this known in documents it had provided plaintiffs on a related case (making a "state secrets" claim dubious). The afterword proposes a "human rights constitution."

The Obama administration's practices may also be represented by the portrait of the National Security Presidency painted by Denvir of the Bush administration (the book was published in 2010, but is now available in paper). For example, Director of National Intelligence James Clapper was forced to walk back from deceptive congressional testimony about the administration's surveillance programs. This occurred, however, only after NSA contractor Edward Snowden delivered a voluminous evidentiary record to GUARDIAN reporter Glenn Greenwald before going into hiding, and ultimately fleeing beyond the reach of the United States to Russia.

In conclusion, I wish to sharpen the significance of Denvir's important discussion of the Supreme Court's First Amendment protection for activists in the 1960s, and its subsequent retreat. The southern conservative attack upon the Civil Rights movement was multi-pronged. On the one hand, they denied the "right to protest for right" by closing [*620] the public forum to demonstrators. On the other hand, they required the NAACP to turn over membership lists to state authorities or required state employees to divulge their associations. When we tally the legal developments since the 1960s, however, do they not add to the same legal outcome? Formally speaking, on the one hand, traditional public fora have been closed to anti-war activists, and to the Occupy movement, though instead of being subjected to water cannons or police dogs, they are assaulted with pepper spray or "flash-bangs." On the other, NSA surveillance vacuums the associations of virtually all Americans for link and pattern analysis (p.125). Denvir describes how the Warren Court protected access to the public forum for Civil Rights demonstrators through rulings like EDWARDS V. SOUTH CAROLINA (1963), and their association rights with NAACP V. ALABAMA (1958) and SHELTON V. TUCKER (1960). Today, activists nationwide are under multi-pronged attack by municipal governments, the National Security Presidency, and the other institutions acquiescing to, or rationalizing, this democratic demise. What today's activists lack are institutional protections against this attack on their public forum and associational rights.